Restorative justice is a form of mediation used within the criminal justice system. It is a voluntary facilitated meeting between a person who has caused harm (the defendant) and a person affected by it (the complainant). During criminal law proceedings, a restorative justice conference may be deemed appropriate, in order to provide the complainant an opportunity to tell their story and the defendant an opportunity to take responsibility for their actions.
The conference aims to provide a safe environment for all parties to participate in open and honest discussions about the offence, its impact on victims and avenues for repairing harm caused. As the name suggests, the conference aims to be remedial in nature, providing an opportunity for the complainant and defendant to reconnect, maintain or strengthen their relationship.
Restorative justice conferences most commonly take place for offences which are before the Magistrates Court. The types of offences commonly associated with restorative justice conferencing include:
Depending on the circumstances and situation, restorative justice may also be an appropriate mechanism to resolve more serious offences. Sometimes, charges such as rape, sexual assault and grievous bodily harm can be referred to and resolved during a restorative justice conference.
Different stakeholders in the criminal justice system can refer people to conferencing. These include the court, police, prosecutions or corrective services. Complainants, defence solicitors and barristers can also suggest it.
Police are frequently asked to consider referring matters to conferencing. They will usually consult with the complainant to see if they are willing to participate in a conference and assess the matter to determine if it is appropriate to be referred to conferencing.
After a matter is referred to a restorative justice conference but before the conference takes place, restorative justice staff will meet with the defendant and the complainant separately at an ‘intake session’.
The purpose of these meetings is to assess the matter to make sure it is suitable for a conference and both the defendant and the complainant are willing to participate in it. During this meeting, the conference will be discussed and the parties can ask any questions they may have.
Staff may discuss:
People who are usually present during a restorative justice conference are:
Sometimes, if appropriate, other people may attend, like:
In most cases, conferences usually occur just between the complainant, the defendant and the convenor. Even though lawyers can suggest matters be referred to restorative justice conferencing, they are precluded from attending.
The parties will be notified during the intake session, which people will be present during the conference.
The convenor is an impartial and neutral third party in the conference. Their role is to guide the conversation and help the parties discuss what happened, the impact of it on them and how they feel about it.
If these discussions are fruitful, they can facilitate discussion about a mutually suitable outcome to both parties. Conferences usually take about two hours.
In terms of any outcome, the convenor will keep the following in mind:
This may involve the person who caused the harm:
The conference is conducted on a ‘without prejudice’ basis. This means whatever is said during the conference by either party cannot be used outside the conference or elsewhere.
This is particularly important for a defendant, in the event the matter does not resolve at the conference. Whatever has been said by them in the conference cannot be used against them later on, especially in the criminal proceedings against the defendant.
There are a few practical tips for those about to participate in a conference, to ensure they are appropriately prepared.
While it is more common to attend a conference in person, if either or both parties are attending over the phone, there are a few points to be aware of.
Whether attending in person, or on the phone, the sorts of things a defendant or complainant participating in a conference may wish to consider are as follows:
If the parties can agree on what can be done, they can sign an agreement that reflects:
After the conference has concluded, the convenor will let whomever referred the matter know the result of the conference (i.e. if the matter resolved or not). If both parties agree, restorative justice will provide them with a copy of the agreement which will confirm that the conference was successful and how the matter was resolved.
Restorative justice staff will continue to monitor the matter to ensure the agreement and any steps required to be taken by either party subsequent to the conference are taken.
As mentioned above, in most cases the matter will not be considered to have resolved if the terms of the agreement are not satisfied; i.e. the matter will not resolve just by signing the agreement.
This is why it is imperative that anything the parties need to do to fulfil their respective parts of the agreement, needs to be done as soon as possible. So, for example, if it is anticipated that the conference will involve some negotiation about a sum of compensation with the complainant during conferencing, the defendant should have the money accessible to them prior to the conference.
Once the terms of the agreement are satisfied, police will be notified.
If court proceedings are on foot, the police may choose to formally withdraw the charges before the court at the next mention of the matter. While it is not a given that any charges will be withdrawn in these circumstances, there is a good argument they should be and this is the usual outcome. If the charges are withdrawn this means the matter is at an end and there is no record on the defendant’s disclosable criminal history.
If you have any questions or concerns regarding restorative justice conferencing or are seeking advice and assistance for your conference, please contact us.
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Gilshenan & Luton, Criminal Lawyers Brisbane and Sunshine Coast, Queensland.